Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. civil No. 84-5524.
Before: GIBBONS, Chief Judge, SEITZ and ALDISERT, Circuit Judges.
Dr. Joseph T. Skehan, formerly an untenured associate professor of economics, again seeks back pay from an agency of the Commonwealth of Pennsylvania relating to an improper termination of his employment with Bloomsburg State College seventeen years ago. Skehan's previous efforts to obtain this retrospective financial relief in the federal courts have been thwarted by the interposition of the eleventh amendment.*fn1 Unsuccessful in his back pay claims against Bloomsburg State College, he has now sued an instrumentality known as the Pennsylvania State system of Higher Education. In the district Court State system asserted, inter alia, its sovereign immunity under the eleventh amendment as a complete defense. The court agreed, denied Skehan's motion for partial summary judgment, and granted State System's motion for judgment on the pleadings. Skehan has appealed. We now affirm.
A partial account of the Skehan saga may be found in Skehan v. Board of Trustees of Bloomsburg State College, 669 F.2d 142 (3d Cir.), cert. denied, 459 U.S. 1048, 74 L. Ed. 2d 617, 103 S. Ct. 468 (1982). Briefly, Bloomsburg notified Skehan, appointed as a non-tenured associate professor of economics at the college in January 1969, that his contract would not be renewed beyond the 1970-71 academic year. Skehan protested on the grounds that the nonrenewal decision was caused in large part by his opinion on national politics and college administration.
In October 1970, Skehan was suspended and subsequently dismissed on the grounds that he failed to teach classes as scheduled by the college. He filed suit in federal court alleging that both the nonrenewal decision and his dismissal were in retaliation for his political activities, a violation of his first amendment rights. He also alleged that he was denied hearings on these decisions in violation of his fourteenth amendment right to due process. The federal courts ultimately rejected his first amendment claim, but the district court held that Skehan's dismissal violated due process because he was not given a hearing. Skehan v. Board of Trustees of Bloomsburg State College, 358 F. Supp. 430 (M.D. Pa. 1973), vacated, 501 F.2d 31 (1974), vacated and rem'd, 421 U.S. 983, 95 S. Ct. 1986, 44 L. Ed. 2d 474 (1975). On remand the district court again concluded that the college violated Skehan's due process right by failing to afford him a hearing on the nonrenewal decision. Skehan v. Board of Trustees of Bloomsburg State College, 431 F. Supp. 1379, 1393 (M.D. Pa. 1977).
The district court ordered Bloomsburg to reinstate Skehan to the status he held on October 15, 1970, after he was suspended but before he was dismissed. Skehan v. Board of Trustees of Bloomsburg State College, 436 F. Supp. 657, 664 (M.D. Pa. 1977), aff'd in part, remanded in part, 590 F.2d 470 (3d Cir. 1978), cert. denied, 444 U.S. 832, 100 S. Ct. 61, 62 L. Ed. 2d 41 (1979). The district court also held that the college must afford Skehan a hearing on both the nonrenewal decision and on his dismissal, in that order. Id. at 664, 668-69.
In sum, Skehan has received limited equitable relief, prospective or front pay pending his due process hearings, and attorney's fees. He has not received back pay or benefits, however, because this court ruled that such relief was barred by the eleventh amendment. Skehan v. Board of Trustees of Bloomsburg State College, 538 F.2d 53, 63 (3d Cir.) (in banc), cert. denied, 429 U.S. 979, 97 S. Ct. 490, 50 L. Ed. 2d 588 (1976). He claims that this relief was only half a loaf, and that her is now entitled to the other half -- back pay from the date he was first dismissed until he started to receive front pay pending the due process hearings. Undaunted by this court's ruling that the eleventh amendment precludes him from proceeding against Bloomsburg State college, he now seeks to obtain from the State System of Higher Education the financial relief that was denied him in his prior actions.
In his present action, Skehan alleges that as an "employee under contract" he was "wronged" by Bloomsburg as set forth in a prior federal court action against the college and some of its officials. He contends that State System, which was created by statute in 1983, succeeds to the obligations, but not the eleventh amendment immunity, of the college. Skehan therefore claims that he is entitled to back pay and fringe benefits, together with attorney's fees, for actions taken by Bloomsburg thirteen years before the State System of Higher Education came into being.
We make clear at the outset that the issue before us is not, as urged by Skehan, whether a municipality may be subject to an action brought under 42 U.S.C. § 1983. See Monell v. Department of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). We face a quite different question -- whether State system is a Pennsylvania instrumentality entitled to the protection of the eleventh amendment. Because this issue involves the interpretation of the federal Constitution, it is a ...